On the obviousness of patents

Paul Hudson - 12:47pm on Thursday February 2nd 2006

Patents are granted in the UK and other countries because the idea is non-obvious, and the developers deserve sole use of the new technology for a period of time. They last for varying amounts of time depending on the country, but it seems that 20 years is about the average. 20 years of monopoly on an idea seems like a long time, particularly in the fast moving world of computer science. 20 years ago the world-wide web didn't exist, and neither did Linux or Google, so it's no surprise that the concept of software patents is anathaema to Free Software developers simply because they would slow down the lightning pace of development.

And yet software patents are granted in many parts of the world. In the US, where software patents are legal, there are thousands of them. In the UK and Europe, where software patents are not allowed, they are being granted anyway. Most irritatingly of all, they are being granted for Very Stupid Ideas.

I attended a small meeting about software patents at OSCon 2004, and one of the people there mentioned that they should tell the world about some of the sillier patents so they could get the law changed. An example he cited was the Lempel-Ziv-Welch (LZW) patent, which covered an algorithm for lossless image compression. It's not a complicated patent at all, but I explained to him that if they wanted to cite silly patents, it'd be better to choose ones that everyone could immediately understand as being silly.

Basic as the LZW algorithm is, few laypeople would describe it as non-obvious. He might, for example, use patent number 6,368,227, which covers "a method of swinging on a swing". This patent is perhaps the best example of wool being pulled over the eyes of the patent office, as it describes how someone can pull on the chains of a swing to move it from side to side. The last paragraph sums up the patent rather well: "it should be noted that because pulling alternately on one chain and then the other resembles in some measure the movements one would use to swing from vines in a dense jungle forest, the swinging method of the present invention may be referred to by the present inventor and his sister as "Tarzan" swinging. The user may even choose to produce a Tarzan-type yell while swinging in the manner described, which more accurately replicates swinging on vines in a dense jungle forest. Actual jungle forestry is not required." Marvellous.

So, with such patents alive and well in the world, I was surprised to receive an email this morning regarding the invalidation of Inpro's UK patent by T-Mobile and Research In Motion (RIM). Here's what part of the email said:

"Inpro’s patent (EP 0892947) covered a computer system which reduced the processing power used by portable computers and other devices in accessing servers on the internet. It described using a "proxy-server" to download data from the web on behalf of the device. The proxy-server then "transposed" the data to match the specific size and resolution of the device.

RIM applied to the English High Court to revoke the patent on the grounds that it was invalid for lack of novelty and obviousness. Inpro counter-claimed for infringement of the patent and joined T-Mobile into the proceedings.

Mr Justice Pumfrey who gave judgment today held that all the claims in issue were either obvious or lacking in novelty."

Now, don't get me wrong: I'm dead set against the idea of software patents, and I think there are a huge number of moronic non-software patents already cluttering up databases the world over. But in a Europe where software patents are apparently inevitable, I worry when Inpro's patent is ruled as obvious. The proxying part is old news - we've had proxy servers for a long time now, and they're certainly no longer novel. But a proxy server that transforms content to fit the exact system specifications of the requesting device? That is new, and I think it's a great idea.

If Inpro's patent was so obvious, why the heck didn't T-Mobile think of it first and file their own patent? Perhaps I wouldn't mind so much if T-Mobile were flat out against patents, but it isn't. T-Mobile's parent company, Deutsche Telekom, has numerous software patents filed, including such greats as "Electronic phone book including audio and graphic data" (EP1429260). Sure, because that's non-obvious.

Software patents annoy me, but corporate hypocrisy annoys me even more. Mixing the two - now, that's a recipe for disaster. Now if only someone would smack T-Mobile over the head with some patents so it gets a taste of its own medicine...